from the acta's-back dept

A few months ago, we quoted the EU trade commissioner Karel De Gucht, who is responsible for handling the TAFTA/TTIP negotiations on the European side, as saying:

"ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.

If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door".

Well, either that was just more misdirection, or he's not in control of his staff. Because we learn from a stunning report of a little-publicized meeting between corporate lobbyists and the EU's negotiator on intellectual monopolies, Pedro Velasco Martins, that putting many of the worst features of ACTA into TAFTA/TTIP is precisely what the European Commission has planned.
Here's the background:

Taking place at the American Chamber of Commerce offices in Brussels, the purpose of the two hour exchange was to strategize between businesses and the Commission in order to make sure that the maximum level of new IP restrictions will be written into the treaty. Present at the meeting were representatives from a range of the very largest multinational corporations. Among these were TimeWarner, Microsoft, Ford, Eli Lilly, AbbVie (pharmaceutical, formerly Abbott) and the luxury conglomerate LMVH. The participant list also included representatives from Nike, Dow, Pfizer, GE, BSA and Disney - among others. Also present
was Patrice Pellegrino from OHIM [Office for Harmonization in the Internal Market], the EU/Commission agency responsible for trade marks in the EU.

As you will notice, most of those companies are from the US. Nothing wrong that, of course, except when you consider the following:

Controversially, the supposedly neutral Commission negotiator and the OHIM representative not only defined themselves as allies with the businesses lobbyists. They went far beyond this and started to instruct the representatives in detail on how they should campaign to "educate" the public in order to maximise their outcome in terms of industry monopoly rights. In particular, concerns from elected representatives, such as the European Parliament -- as well as civil society criticisms about ever increasing intellectual property rights -- were to be kept out of the public debate.

Here's what the European Commission really wants to see in TAFTA/TTIP:

Commission negotiator Velasco Martins revealed the existence of a secret list of corporate demands for new intellectual property rights in the transatlantic treaty. Previously -- towards the public and the Parliament -- the Commission has created the impression that intellectual property rights will be downplayed. The only IP right mentioned has been geographical indications, a minor issue which few are concerned about. In reality, the Commission now revealed that they have received "quite a Christmas list of items" on IP from corporate lobbyists and that they are working to implement this list. The list has already been discussed with the US in several meetings, in person as well as online.

The Christmas list covers almost every major intellectual property right. On patents, industry had shown "quite an interest" especially on the procedures around the granting of new patents. On copyrights the industry wants to have the "same level of protection" in the US and EU; in reality this always means harmonization up which results in more restrictions for the general public. On plant variety rights the pharma sector has lobbied for "higher levels" of protection. On trademarks the corporate lobbyists had made classification-related requests to the Commission. Additionally there had been a lot of interest in trade secrets.

There's also stuff from our old friend ACTA -- stricter enforcement:

According to the negotiator, the most repeated request on the Christmas list was in "enforcement". Concerning this, companies had made requests to "improve and formalize" as well as for the authorities to "make statements". The Commission negotiator said that although joint 'enforcement statements' do not constitute "classical trade agreement language" -- a euphemism for things that do not belong in trade agreements -- the Commission still looks forward to "working in this area".

Since the beginning of the TTIP negotiating process, it is very clear that the eventual agreement on intellectual property rights will not include elements that were controversial in the context of ACTA. For example, the ACTA provisions on IPR enforcement in the digital environment (ACTA articles 27.2 to 27.4) will not be part of the negotiations. Neither will ACTA's provisions on criminal sanctions.

The report of the meeting contains many other fascinating insights into the real thinking of the European Commission. For example, apparently there is some relief that people are focusing on the horrors of corporate sovereignty, since that has allowed work on the "corporate Christmas list" to proceed unnoticed. There was also a warning that it is probably only a matter of time before details get out:

"Lots of people are waiting for the first slip, the first leak"

In the wake of the good things that have already flowed from Edward Snowden's leaks, and the enhanced status of whistleblowers today, that seems increasingly likely to happen. Finally, there was a useful hint of how the European Commission is going to attempt to justify bringing back ACTA in TAFTA/TTIP:

A recurring theme was that the public needs to be re-educated to understand the value of industry monopoly rights.

According to Pellegrino, the key to doing this is a number of pro-IP reports that will or have been released by OHIM.

One recent report was highlighted. It claims that every fourth job in the EU only exists because of intellectual property regulations.

Techdirt wrote about this back in October, where we pointed out that it obtains these unrealistically high figures by including a whole range of industries that use things like copyright and patents only in the most limited and tangential way. Expect to see more of these exaggerated claims, based on similarly shoddy methodologies, appearing in the next few months.

That OHIM is putting out such propaganda isn't perhaps too surprising -- it's just a form marketing for its activities. But what is shocking is that an OHIM representative, along with the most senior EU negotiator for intellectual monopolies, should be offering detailed advice to US companies on how to subvert the TAFTA/TTIP negotiations by trying to keep the dissenting views of Members of the European Parliament and EU civic groups out of the debate. That's a direct assault on fair and open discourse, and ultimately undermines European democracy at a time when many are calling into question the entire idea of the European Union.

At the very least, the European Commission should set up a formal inquiry into what happened at this meeting, to make sure such blatant favoritism is avoided in future. If it doesn't, we'll know definitively that not only is it happy to see corporates on both sides of the Atlantic given preferential treatment during TAFTA/TTIP, but that it really doesn't care who knows. Meanwhile, those who took to the streets of Europe to fight off ACTA last year may want to start getting their boots ready.

from the hopefully-they'll-stop-that dept

We covered the ridiculously long fight in WIPO to finally get a treaty that allows greater rights for the blind to get access to copyright-covered works. This fight, which went on for over a decade, finally reached mostly a conclusion in the past few months with the Marrakesh treaty. While the US avoided it at first, even it signed on at the beginning of October. Of course, the US was the main force opposing the treaty for a long time, with the main argument against it being something along the lines of "if we make any concessions towards more user rights over copyright-covered content, it will set a bad precedent." This is the mind of a maximalist: the ratchet can only work one way, and that way is for greater protection and enforcement, even if there's no evidence that it does any good (and plenty of evidence of the harm it does).

KEI points us to a just-discovered letter sent to the State Department to fight against the WIPO treaty right before it was finally agreed to, arguing (of course) that any effort to give users greater rights is a horrible precedent to set. The letter was sent from a group called the Trans-Atlantic Business Council (TCB), and was apparently pushed around DC by a lobbyist for General Electric (note taken: General Electric wants to fuck over the blind -- what, they don't buy enough lightbulbs?).

More incredible is that among the members of the TCB is... Red Hat. If ever there were a company that should be in strong favor of more user rights and against maximalism, it's Red Hat. One hopes that the company doesn't approve of this letter being sent in its name. Similarly, IBM is on the list, and it's a company that relies tremendously on open source software. Does IBM want to go down as a copyright maximalist with no concern for the blind? If not, it might want to reconsider its membership in such an organization.

The letter itself really is incredible in the ignorance it pushes, definitely fitting into the category described above:

As currently drafted, the VIP Treaty would set a negative precedent, reversing years of joint U.S. and EU efforts to prevent the erosion of global Intellectual Property Rights (IPR) and undermining the U.S. and EU negotiating positions in a range of other global IPR and trade negotiations.

And here's the really incredible part, which likens rights for the public to a disease:

Agreement of the VIP Treaty on the basis of this text (or anything approximating it) could negatively affect U.S. and EU IP-related negotiating positions across global forums for years to come. The risk of contagion is not limited to copyright issues alone, but spans the entire range of IPR issues, including also patents, trade secrets, and trademarks. U.S. and EU positions in the ongoing debates at WIPO, the World Trade Organization (WTO), the UN Framework Convention on Climate Change (UNTCCC)--where IPR issues have been a politically divise issue for years--and the World Health Organization (WHO) could certainly be undermined.

The idea that more user rights is a "contagion" and might harm other agreements is, fundamentally, ridiculous.

One hopes that Red Hat will distance itself from such ridiculous language, which appears to go very much against the company's stated position on both copyright and patents.

from the how-can-they-deny-it? dept

Back in April, we pointed out that the MPAA was working overtime to screw over the blind in the negotiations for a WIPO treaty to make it easier for the blind and those with vision impairment to access works for the blind. They'd already succeeded in screwing over the deaf by getting them excluded from the treaty, despite it initially being for both. Over the past two months, however, the MPAA tried to go on a charm offensive going on and on about how much they really, really liked blind people and wanted to help get a treaty passed, even somehow getting the National Federation for the Blind to throw their own members under the bus by issuing a joint statement claiming to support the treaty.

However, over the past week, the reports coming out of the treaty negotiations in Marrakesh have been consistent about one thing: the MPAA's influence over the US negotiators has been immense, and the US negotiators have been the single source blocking the completion of the treaty by arguing to gut the entire treaty, making it next to useless. They've fought against fair use. They've fought against exceptions to copyright. It's gotten so bad that even the mainstream press has picked up on the MPAA's direct assault on the blind. The Washington Post has an article all about the MPAA's attempts to block and change the treaty such that it is effectively useless.

But the treaty, years in the making, could be in jeopardy because of unresolved differences between advocates for the blind and the Motion Picture Association of America, which says the accord could undermine protections important for filmmakers, publishers and other major industries.

Of course, you might wonder why the MPAA is so concerned about a treaty for the blind, which is mostly focused on written materials, since that shouldn't impact the MPAA very much. The answer is what we've said for years: copyright maximalists will fight against any treaty that recognizes the rights of people to push back against maximalism through things like fair use. And the MPAA isn't even coy about this:

“What happens here could affect other future treaties,” said Chris Marcich, who is in charge of dealing with the negotiations for the MPAA and its international wing, the Motion Picture Association.

Yes, how dare the public have their rights supported during treaty negotiations about what they can do with works they own. Horrors.

The article also highlights that the MPAA was instrumental in getting the negotiators to drop more expansive fair use rights of the public included, insisting instead on only allowing the "three step test" from the Berne Convention included. As we've discussed in the past the three step test is merely one way in which a country can protect the public's rights to limitations and exceptions in copyright law, but maximalists like to claim it's the only way, because if you read it in the strictest sense, it severely limits fair use, because a use fails the "three step test" if it "unreasonably prejudices the legitimate interests of the rights holder." In other words, if the rights holder doesn't like it, no fair use for you. Amazingly, even this test is now not enough for the MPAA:

But the MPAA says the protections afforded by the three-step test are still too weak and wants them to be more effective. Moreover, Hollywood is strongly resisting language in the draft that mirrors the concept of “fair use,” long embodied in U.S. copyright law. Fair use says that copyright material can be used without permission in certain circumstances, such as for nonprofit educational purposes.

Related to all of this, KEI has received, via a Freedom of Information Act (FOIA) request, all emails between MPAA lobbyists and the negotiators from the USPTO (who are handling much of the negotiation). It's worth noting, by the way, that the key person at the USPTO (and the person addressed in many of these emails) is Shire Perlmutter, currently the Chief Policy Officer and Director for International Affairs at the USPTO, but prior to that was the Executive VP of IFPI (the international version of of the RIAA) and before that, was VP and Associate General Counsel for Intellectual Property Policy at Time Warner... a member of the MPAA when it owned Warner Bros.

Included in the documents is an incredible attack on fair use by the MPAA, sent in April of this year, just as the MPAA was insisting it wanted to help the blind, and at the same time that the MPAA's Ben Sheffner was, ridiculously, pretending that the MPAA was one of the world's biggest defenders of fair use. Yet, at the very same time, they were promoting a document that claimed the following about fair use:

As has been pointed out by various commentators, open-ended systems such as fair use under Sec. 107 US Copyright Act may raise issues with the three-step test, in particular the first and possibly third step.... Consequently, it is neither necessary nor would it be reasonable or desirable in view of the mentioned difficulties to include an express reference to fair use or fair dealing in the proposed instrument.

A specific reference to fair use or fair dealing could also be misleading for it could be understood as an invitation to implement the instrument in such a way, whether or not it sits well with the particular legal system of the Contracting Party in question. However, any wholesale introduction of a particular legal feature, be it fair use, fair dealing or a closed list, would be contrary to the intended effect of the discretion that Contracting Parties may exercise with regard to the way of implementing their treaty obligations....

At a time when the fair use doctrine is considered by many as a cure for all ills, this would clearly be the wrong sign....

Consequently, for all the foregoing reasons, the reference to specific ways of implementation such as fair use or fair dealing should be omitted from the proposed instrument.

These are the defenders of fair use? These are the folks who claim they're trying to help the blind? That's all a lie. And the quotes above are just a few. There are a lot more of that nature. The MPAA wants to screw over the blind out of a fear that people might realize that fair use and other rights of the public might just be more important than an artificial government monopoly system to inflate their bottom lines.

Later in the documents, you can see the cozy relationship between the key government players, Perlmutter and Justin Hughes (another well-known maximalist supporter, now in the government) and MPAA members and lobbyists. There's also a discussion about how three steps in Berne only applies to certain types of copyright rights (reproduction rights), but does not apply to other things like public performances, and how their wishes are to go even further and make sure the very limiting 3 steps applies to everything. It also shows that the US government, via Perlmutter and Hughes, helped propose back to the MPAA how they might achieve their goals in the agreement. In an email from Scott Martin at Paramount to Perlmutter:

I suggested to Justin the concept that I heard from both you and Karyn Temple Claggett: membership in the VIP Treaty be limited to countries that have ratified and implemented the WCT. Perhaps if there is resistance from non-ratifiers, the US/EU could then proposal a new Article Ebis that would apply only to countries which want to ratify the VIP Treaty but which have not yet ratified and implemented WCT.

Justin seemed intrigued by the idea and mused that perhaps the Japanese proposal for Article E could be expanded to cover this separate goal.

There are also cases where people, such as Time Warner employees, were sending language they wanted inserted directly to Hughes at his request. At one point, Hughes emails Bradley Silver at Time Warner with a simple request:

Could you just send me the whole language?

That was after Silver specifically asked Hughes to "tweak" the language in one section.

Basically, the documents make it abundantly clear that the MPAA is trying to keep fair use/fair dealing way out of the agreement, and then seeking to undermine things even further by putting in place an extreme version of the three step test -- a test that already goes way too far in limiting the public's rights to make use of works. It further shows that the MPAA's public stance that it's in support of a treaty for the blind is hogwash. It's in support of a treaty that strips away many of the rights for the blind.

from the this-is-helping-the-blind? dept

We had just pointed out that the MPAA is now pretending to be in support of a copyright treaty for the blind, despite its lobbyists doing all sort of things to try to block it. Now we have reports from Geneva, via Jamie Love, that the US is opposing important language in the treaty, which is part of the reason that it's still being held up. First, as noted in the link above, the US is opposing the following footnote, which may seem like a small deal:

It is understood that Contracting Parties who are members of the World Trade Organization (WTO) acknowledge all the principles and objectives of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and understand that nothing in this Treaty affects the provisions of the TRIPS Agreement, including, but not limited to, the provisions relating to anti-competitive practices.

As Love notes, similar language has appeared in a variety of other agreements, including ACTA and the Beijing Treaty (which would give Hollywood stars their own special copyrights). Why is this language important? Because TRIPS includes key provisions that allow countries to make some of their own decisions about how they implement the agreements, to protect the public's rights. But, the content industry doesn't want that same language in this treaty, which is focused on the public's rights, because they're afraid it will, once again, open the door to countries expanding the public's rights, and pushing back on egregious copyright restrictions on those rights.

As if to drive that point home, in a later update emailed from Love, he notes that the US is now also trying to get the phrase "fair practices, dealings or uses" deleted from the following section of the treaty:

"Contracting parties may fulfill their rights and obligations under
this Treaty through, exceptions or limitations, specifically for the
benefit of beneficiary persons,other exceptions or limitations,or a
combination thereof within their national legal traditions/systems. These may include judicial, administrative or
regulatory determinations for the benefit of beneficiary persons as to
fair practices, dealings or uses to meet their needs."

In other words, it's just as we said the MPAA is trying to do: sure they claim they want a treaty to help the blind, but not if it includes anything even remotely suggesting an expansion of the public's fair use rights. So, here, they're "fine" with helping the blind get access to works, but not if it's done via fair use.

from the must-watch dept

As the MPAA and other copyright maximalist organizations continue to try to block the WIPO copyright treaty for the blind, which will make it easier for blind people around the globe to be able to access creative works, I was touched by this incredible video from Ron McCallum, the former dean at the University of Sydney Law School, where he is now an Emeritus Professor. McCallum has been blind since birth, and in the video he talks about how technology changed his life and allowed him to do so much -- and how important the treaty in question is, to allow that same revolution to help others, especially in less developed countries.

It's touching and entertaining at the same time, and should make you wonder why the MPAA wants so badly to reject this treaty. Obviously, the MPAA doesn't hate blind people, but they're so ridiculously scared of any expansion of the rights of the public (things like fair use) that they'll block any and all moves in that direction, even if the collateral damage means that other Ron McCallums around the globe won't be able to have the wonderful experiences that he did.

from the well-isn't-that-convenient? dept

Last week, we discussed a recent We The People petition at the White House, asking the administration to support the treaty for the blind, which would make it easier to access creative works for the blind by creating a few small "exceptions" to copyright law (i.e., returning rights to the public) for the sake of sharing formats that are accessible to the blind across borders. However, some blind advocacy groups have discovered that, if you happen to be blind/visually impaired, it's basically impossible to sign the petition.

The glitch, the group says, is in those often annoying tests that require users to type in a set of numbers and letters to prove they are human. On the White House web site, blind users can select an audio version of the test, but the audio is incomprehensible, according to federation spokesman Chris Danielsen.

And if users want to send email notifying the White House about the problem, well, that also requires a computer-human test with garbled audio, too, he said.

That's certainly convenient for an administration that has increasingly moved away from its earlier stance that it supported this treaty. Now, making it almost impossible for the actual stakeholders to express their opinion really should drive home why increased accessibility is important. Hopefully the White House will quickly fix this bug, but more importantly, it would be nice if they actually supported the damn treaty.

from the but-still-a-long-way-to-go dept

We've covered the efforts by many people over a very, very long period of time to set up a special treaty to help the blind and people who have other reading disabilities have greater access to works that may be covered by copyright. While the US administration rushes through things like ACTA and TPP, it has slow rolled this particular treaty -- bouncing back and forth between supporting such a treaty and not supporting it. Part of this issue, it appears, is that some of the key people in the Obama administration who recognized the value of such an agreement left, and the people who took over are known for their extreme maximalist positions. And, the concern with creating this treaty is that (*gasp*) it might open the door to governments giving people back their rights to make use of products they own.

So it took some people by surprise that the US showed up at the latest WIPO meeting apparently ready to support an agreement. Of course, the devil is in the details and the details showed that the US still didn't want anyone to call the thing a treaty, even as everyone else wants it to be a treaty. The US is also acting very tentatively on this, making it clear that it wants "final review" of the text, and that it might walk away if big copyright holders protest they don't like what they see. After some pressure from just about everyone else, the US has agreed that it will at least show up for discussions on making the agreement an actual treaty -- and that's quite reasonably being seen as progress.

The actual conference to discuss all of this will be held in June, and between now and then, expect all sorts of posturing (mostly by the US) in which they try to limit what's in the agreement and water it down as much as possible. The end result is unlikely to be particularly interesting. It's likely to be very limited and carve out all sorts of things (for example, it will only apply to text, rather than "audio-visual" works -- because, apparently, the MPAA has no interest in making its products more accessible). Having seen all of the scheming and roadblocks US officials have put up over the years concerning what should be a fairly straightforward agreement to help people who are disabled access more content, I'm not particularly hopeful anything useful will come out of this process in the end. But, the big copyright industry can rest easy at night knowing that blind people won't be able to access their materials.

from the might-be-tough dept

With the EU Parliament rejecting ACTA over the summer, and the Japanese legislature doing a drive-by ratification, there are some legitimate questions as to whether or not ACTA will ever become a real, valid international treaty. Without the EU's support, it's a hell of a lot less likely, certainly. I'd been joking that it was beginning to look like it's going to become an agreement between the US... and Morocco, but the actual process to make ACTA official requires six participants to have "ratified" it. While a bunch of countries have signed, that's still a step short of ratification. And, to date, only Japan has done so (though there are arguments over whether or not the US needs Congressional approval for ratification). Monika Ermert, over at IP-Watch, details the current situation. Here's a snippet:

With an apparent stalemate between the US administration and legislators about ratification procedures and the European Union out after the Parliament voted against the agreement, it looks as if there is still an uphill battle to get to reach that number.

Besides the EU and Japan, seven governments have signed ACTA (Australia, Canada, Morocco, New Zealand, Singapore, South Korea and the United States). Switzerland has not signed nor ratified.

“Not much is happening on the Canadian front,” wrote Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa and long-time ACTA observer. “Canada signed ACTA, but has not ratified. Ratification would likely require some legislative amendments,” Geist said, and until those changes are introduced the country would not be positioned to ratify. There may be, according to Geist, linkage between ACTA and CETA (the Canada-EU Trade Agreement) under negotiation.

Britton Broun, media advisor of the Economic Group in the Ministry of Business, Innovation and Employment of New Zealand, responded to Intellectual Property Watch by saying: “While New Zealand has signed ACTA, the government has not yet taken a decision on its ratification.”

As we've discussed, Australia's Parliament has already recommended rejecting ACTA, and it appears that ratification has stalled out there as well. Ermert suggests that really the only way that ACTA might reach the necessary levels of ratification will be if other countries follow Japan's method of approval -- by which they effectively sneak it through.

Along those lines, her report confirms what we'd heard about how the ruling party in Japan effectively got ratification without actually bothering to allow the opposition to take part:

But on 31 August, a committee of the House of Representatives, and on 6 September, the full House of Representatives pushed ACTA through, each time counting only the votes of the ruling party.

“To ratify an international treaty without the attendance of all opposition parties means a collapse of democracy in Japan,” warned Suzawa.

While ACTA hasn't received that much attention in Japan, allowing the government to get away with such shenanigans, it seems likely that any attempt to do something similar elsewhere would be met with more widespread resistance. In other words, it seems unlikely that enough countries will actually get around to ratifying ACTA -- though we should never underestimate the tricks that lobbyists and diplomats will pull to try to shove this ugly pig over the finish line.

from the more-of-the-same dept

We've been talking about ACTA and TPP and the ridiculous levels of secrecy around them for a while now, but the US's overly secret policies are showing up in other treaty issues as well. For years, we've been talking about negotiations at WIPO to create a treaty that would provide specific exceptions to copyright law to help the blind get access to works in formats they could read (basically, it would make it so the blind could more easily import braille and other versions that are readable for the visually impaired from other countries). This issue has been out there forever. And while we always hear how important it is that US negotiators rush to get deals like ACTA and TPP done, they've dragged their heels on the treaty for the blind for ages. At the urging of copyright holders, the Obama administration came out against such a treaty a few years ago. And the EU Commission has been against such a treaty for a while as well, claiming that it's just too hard to put in place. Yeah, rush through things like ACTA and TPP... but helping the blind get access to works? That's just too hard...

Over at WIPO, the Standing Committee on Copyright and Related Rights (SCCR) conference is ongoing, and one of the agenda items is this treaty for the blind. One of the key points that have held up negotiations is whether or not this should really be a "treaty." As I understand it, copyright maximalists are scared silly of creating an actual treaty that is focused on "exceptions and limitations," because that might make people realize that exceptions and limitations are a thing they can create whole treaties around... and thus we'd start seeing a lot more of that.

And, in fact, on the agenda at SCCR are two other potential agreements (which are much newer) discussing the possibility of exceptions and limitations in two other areas: education and libraries. As this video, shot by Jamie Love at KEI of Alan Adler, the VP of the Association of American Publishers, shows, he's against these kinds of treaties because the publishers believe that exceptions and limitations are an attack on their rights, and they don't want to support that kind of thing.

What's really disturbing, however, is that despite years and years of work on a treaty for exceptions for the blind, and despite the public's reaction to secret negotiations in the likes of SOPA, ACTA and TPP... the US so far has been keeping the text of what's being discussed a secret. Jamie Love has been explaining that this is creating huge problems at SCCR, because very few people know exactly what's in the text, and they feel that they're wasting time. There had been some hope that a basic agreement might finally have been worked out at this session. But, instead, while lobbyists have been briefed, actual advocates for the blind and the public have been left out in the cold and don't even know what's in the latest draft.

There's no way to describe this other than absolutely shameful on the part of the US government and the Obama administration. It's dragged its feet for years on helping the blind over this issue, even while trying to rush through all sorts of copyright treaties that favor Hollywood. And now, despite all of that, having the US (once again) keep the text a secret... it's just shameful.

from the that's-not-what-the-constitution-says dept

Back in October, we noted that Senator Ron Wyden had sent the Obama administration a letter pointing out that it appeared unconstitutional for the President to sign ACTA without getting Congressional approval. The USTR had been insisting that because ACTA does not require any change to US law, it doesn't need any such approval. Of course, that ignores a few issues. First, while it may not change US laws, it seems likely that it would restrict future changes to laws if we wanted to stay in compliance. For that reason alone, it should have Congressional approval. But the larger point is that international agreements signed without Congressional approval -- so-called "executive agreements," -- can only be done for issues solely under the President's mandate. Copyright and patent laws, however, are the mandate of Congress, not the President.

The statement by the USTR confuses the issue by conflating two separate stages of the process required for binding the U.S. to international agreements: entry and implementation. It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But, regardless of whether the agreement requires changes in U.S. law, a point that is contested with respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval.

Thus, Wyden asked the President to explicitly state that ACTA was not binding and does not create any international obligations for the US:

I request that as a condition of the U.S. putting forward any official instrument that accepts the terms of ACTA that you formally declare that ACTA does not create any international obligations for the U.S. -- that ACTA is not binding. If you are unwilling or unable to make such a clarification, it is imperative that your administration provide the Congress, and the public, with a legal rationale for why ACTA should not be considered by Congress, and work with us to ensure that we reach a common understanding of the proper way for the U.S. to proceed with ACTA.

Instead, however, the USTR responded (embedded below) with the same exact response it's been giving out all along: nothing to see here because ACTA requires no changes to US laws. There are two very big problems with this. First, it's not clear that's even true. The Congressional Research Service's analysis of the language of ACTA (done at the request of Wyden) pointed out that ACTA may require changes to US law. The problem (and it's a big problem) is that the language is so vague, it all comes down to interpretation.

Second, even if the USTR is correct that ACTA requires no changes to US law, that's answering a different question. Wyden did not ask about what ACTA required to implement. He asked what was required to approve it. And the law does not say that the President can declare something an executive agreement if it doesn't require a legislative change -- but that he can only do it for things under his sole mandate. ACTA clearly does not qualify. Either way, this is a really disingenuous move by the USTR. It answers a different question and does so possibly inaccurately. And, nowhere in the letter did anyone respond to Wyden's specific request for a declaration that ACTA creates no international obligations for the US.

In response, Wyden has now sent a second letter (also embedded below) to the State Department, asking it to look into this and clarify if a mistake has been made. Here are the specific questions he asks the State Department to answer:

If ACTA is entered by the President without Congressional consent, what will be the nature of the agreement and its legal implications under U.S. and international law? For example, is it the Department of State's opinion that ACTA will be equivalent to a non-binding "memorandum of understanding," like some of the intellectual property agreements cited by USTR in the attached letter? Can ACTA be a valid and binding "sole executive agreement" under the U.S. Constitution, even though the regulation of intellectual property is not a sole executive function under the Constitution? Or must ACTA, to be binding, be a form of Congressional-executive agreement by virtue of ex ante or ex post congressional approval?

What is the nature of the international legal obligations that ACTA would create? Would the U.S. be in violation of the agreement if the Congress changed federal law in a way not consistent with the agreement, for example by ridding our law of statutory damages for online copyright infringement? What would be the implications of such a violation?

What are the constitutional limits on the President binding the U.S. to legislative minimum standard agreements over matters delegated to Congress under Article I Section 8 of the Constitution? Is the President free to bind the U.S. to any international agreement he chooses merely because he deems them to be consistent with U.S. law? (It is worth noting that many experts believe that ACTA is not, in fact, consistent with current U.S. law.)

These are good questions. The first and third are the crux of the Constitutional issue, but the second one is the really important one from a policy standpoint. We've argued that a rather serious problem with ACTA is that it will severely limit Congress' ability to fix certain aspects of copyright law. The example used by Wyden is a good one. There's a very strong argument to be made that statutory damages in copyright law are ridiculous, disproportionate and out of control. Fixing them would be a big help in making sure that copyright law isn't used regularly as a nuclear weapon against people who simply can't defend against the possibility of ridiculous damages awards. Another example would be if Congress decided to walk the courts back on their made up idea of "inducement" being a form of copyright infringement. Under ACTA, either of these moves would put the US in violation. So while it may not require legal changes to implement today, it may significantly prevent Congress from making those changes. And shouldn't Congress have the right to weigh in on that?